R v T [2014] NZHC 1634 (11 July 2014)

Last Updated: 15 July 2014

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PROHIBITED BY S 201

OF THE CRIMINAL PROCEDURE ACT 2011.

PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-032-2816 [2014] NZHC 1634

THE QUEEN

v

_T

Hearing:	11 July 2014
Counsel:	G J Burston for Crown S J Gill for Defendant, Interpreter: Steve Thomsen (seated alonside Defendant)
Sentence:	11 July 2014

_{SENTENCING NOTES OF THE HON JUSTICE KÓS}

[1] You have pleaded guilty to three counts of incest with your daughter.¹ The charges are two of digital penetration (one vaginal, the other anal), and one representative charge of sexual intercourse.

[2] In sentencing you today I will describe what you have done, the impact on your daughter, your circumstances and the legal principles I must apply. Then I will

_{consider what sentence I need to start with, based on the facts of your offending.}

¹ _{Crimes Act 1961, s 130.}

R v T [2014] NZHC 1634 [11 July 2014]

Last, I will consider whether any considerations personal to you should make me alter the starting sentence.

What you did

[3] I start with what you did.

[4] Your daughter is your wife’s biological niece. You and your wife adopted her when she was 15 years old. You brought your daughter to New Zealand to live with you. She attended school and polytechnic courses. But she struggled because of a combination of intellectual impairment and limited understanding of English. Your daughter has an IQ of about 72 just barely above the statutory level of intellectual disability.

[5] You and your wife treated your daughter differently from your other children. She was rarely allowed to leave the house. The only real exceptions were to attend class or church. She was not allowed access to a computer or cellphone. You denied her access to the bank account into which her benefit was paid. She was given just

$7 a week for her bus fares. As a result she had few friends, and no real life outside the house.

[6] Instead, your daughter was required to clean the house and cook for the family. You acknowledge that she was “treated appallingly” by your wife. As your counsel puts it, she “denigrated her verbally and physically abused her”. Your daughter would be physically assaulted by your wife if she failed to complete her household duties satisfactorily.

[7] You worked an evening shift, sometimes not returning home until the early hours of the morning. You were usually home between 6.00 am and 2.00 pm. Your wife worked. Your other children were attending school. You and your daughter were generally home alone together between 10.30 am and 12.30 pm. That is when the offending occurred.

[8] Your offending against your daughter occurred between September 2010 and

September 2012. Your daughter was 19 years old when it all began.

[9] I do not intend to add further indignity to your daughter’s plight by detailing what you did to her. The short summary at the start of this sentence will speak for itself. But between September 2010 and September 2012 you had full sexual intercourse with your daughter on a regular basis.

[10] There is no suggestion that she initiated any of this. There is no evidence that in complying with your demands she did so other than as a coerced and confused young woman with no real options in her life.

[11] Your instructions to your counsel were that you saw yourself as “having an affair” with an adult daughter. That you had “fallen in love” with your daughter, that an “adult courtship” ensued, and that your physical love was reciprocated. I do not accept those claims for one minute.

[12] First, your actions here speak louder than your words. You did not protect your daughter from the abuse meted out by your family. You did not protect her from your own lewd impulses. The relationship was illicit, and concealed by you. And when your daughter got into real trouble, as I am about to relate, you were nowhere to be found.

[13] Secondly, your excuses cannot be reconciled with your daughter’s victim impact statement. It speaks of fear, of intimidation, of excruciating pain, of anxiety, and of an awful, numbing sense of isolation.

[14] Thirdly, in a case of incest involving a gross breach of trust, motive is completely beside the point.

[15] Your daughter was not aware that she was pregnant until August 2012, when she gave birth to a live baby daughter in the garage of your home. The baby’s body was discovered later in the garden of an adjacent property.

[16] Your sentencing submissions say that you tried to protect your daughter by

hiding the fact that you were the father. How that “protected” your daughter I am at

a loss to say. It certainly protected you. Eventually your daughter admitted that the baby was hers and DNA testing established you were the father.

[17] Your daughter was charged with murder. Later it was reduced to infanticide. Quite rightly the prosecution against your daughter was stayed earlier this year.

[18] What involvement you had in the death of the baby – your daughter – is not a matter for my consideration today. You will answer in another place, at another time, for any responsibility that you had for that.

What effect it had on your daughter

[19] I have referred already to the impact that your offending has had on your daughter.

[20] She remains frightened of you and this has extended to a distrust towards other men. She is unwilling to stay home even with trusted male relatives. She was traumatised by your acts, by the unexpected birth which resulted from those acts, and from the death of her – and your – daughter.

What your circumstances are

[21] I turn now to your circumstances. You are 60 years of age. You came to New

Zealand in 1975 and you have never previously appeared before the Courts.

[22] By all accounts, other than this offending, you have been a humble and pious man. You are a lay preacher and you have risen to senior office within your church. In your statement to the police you compared yourself to Abraham, fathering a child in the later years of his life. You also claimed that you had been under the influence of the devil.

[23] The pre-sentence report repeats your claim that your actions were an affair, rather than serious offending against your daughter. You made no comment in the interview about your daughter’s welfare. Rather you spoke about your own

progress. You seem to have little insight into your offending, or empathy or remorse for what you have done to your daughter.

[24] You are assessed as having a medium risk of re-offending.

What purposes and principles of sentencing must be applied

[25] I am required by the Sentencing Act 2002 to keep in mind a number of purposes and principles of sentencing.

[26] I must keep in mind the need to hold you accountable for the harm that your offending has produced. I must keep in mind also the need for you to acknowledge that harm and take responsibility for it.

[27] I need to denounce your criminal conduct. And I need to deter you and other people from committing similar offences in the future.

[28] I must take into account the gravity of your offending, including your degree of responsibility. I must have regard to the seriousness of your offending compared to other types of offending, and the maximum penalties imposed. I must also consider the general desirability of consistency in sentencing.

[29] And then the law says I must impose the least restrictive outcome that is appropriate to your circumstances, including your personal circumstances.

What your starting sentence will be

[30] In determining the starting point for your sentence, I take those purposes and principles into account.

Aggravating features of the offending

[31] I start by considering the aggravating features of your offending. The Crown says there are six. The defence accepts all six apply, but with some qualifications.

Age disparity

[32] First, there is the disparity in age between you and your daughter. You were

56 when this offending began. Your daughter was 19. And she was a young and immature 19 at that because of her intellectual impairment. Mr Gill does not seek to reduce this consideration.

Vulnerability

[33] Secondly, vulnerability. Your daughter was particularly vulnerable to abuse. She is intellectually impaired. You say you were not aware of that but I do not accept that you were unaware of the signs of diminished capacity.

[34] In addition, she does not speak English well. You and your wife restricted her ability to lead an independent life by controlling her movements and income. Effectively she was confined to your house.

[35] Your daughter lacked the intellectual capacity or emotional support to rebuff your sexual demands. She had little opportunity to raise the alarm.

Breach of trust

[36] Thirdly, your offending was a grave breach of trust. You were entrusted with your daughter’s care so she could come to New Zealand to gain an education and to support her family.

[37] In a letter of support for you, your wife and son write that:

In our culture, the father is the head of the family, a vision and concept enfolded into one to bring stabilization and protection.

In your proud cultural tradition, a tradition you have darkened and dirtied, you had a particularly powerful position in the family.

[38] You say that you did not abuse your position of authority, but that is nonsense. You were in charge of the two key things in your daughter’s life: church

(in your position as a lay preacher), and family (in your position as the father). It is no wonder that your daughter obeyed your instructions. As your own family says, you were meant to guide and protect her. But you abused your position of authority to make your daughter comply with your wishes.

Extent of offending

[39] Fourthly, there is the extent of your offending. This was not a simple mistake in judgment. This was sustained criminal behaviour that occurred regularly across two years.

[40] Mr Gill suggests that this duration means consent. I am unable to reach that view on the limited material available to me. I cannot find the existence or quality of any particular consent, to any particular act.

Offending in the home

[41] Fifthly, your offending occurred in your family home. It was a place where your daughter was entitled to feel safe. In the circumstances there was no other place she could have felt safe.

Harm to your daughter

[42] Sixthly, there is the harm to your daughter. A tragic feature of this case is that a newborn baby died. You did not use contraception, and you impregnated your daughter. She suffered the trauma and pain of childbirth in the family garage, made worse by the fact that she had not appreciated that she was pregnant at all. She gave birth quite alone. Such was her fear and shame that she denied she had given birth at all for some time. Deprived of medical attention, she had to spend several days in hospital. She had an operation to deal with complications relating to the birth.

[43] The pregnancy through incest and the death of her first child has deeply distressed your daughter. She became depressed and suicidal and was admitted to a psychiatric unit for some months. She wanted a normal life. She wanted to marry. She now distrusts men.

[44] I agree with the Crown that this kind of offending strikes at the heart, not the moral edges, of our society. Its impact on your daughter will be serious and long- lasting.

Mitigating features of offending

[45] Having considered the aggravating features I find no offsetting mitigating features here.

[46] Mr Gill suggests that this was a case of incest between two adults, and that I should be guided by cases involving consensual adult incestuous relationships.² I do not accept that invitation. I have already expressed my view on the evidence as to the existence and quality of consent. The statement of facts upon which you pleaded guilty records that your daughter was, at most, a reluctant participant in sexual activity. Her intellect, her home life, and your authority suggests a clear abuse of

power, not a willing relationship of equals.

Comparable cases

[47] I now turn to previous legal authorities, which provides me with guidance as to where to set a starting point for your sentence. They are the cases that Crown counsel and your counsel have referred to in their submissions and I am not going to go through them in detail in this sentencing. I have considered each of them in reaching a starting point for your sentence.

[48] This is all I need to say about the previous cases.

[49] First, this is a more serious case than R v Accused (CA291/90),³ which involved an end sentence of three years’ imprisonment.

[50] Secondly, this case is more comparable to, but marginally more serious than,

_{R v Crime Appeal 235/88.}⁴ _{There the Court of Appeal upheld an end sentence of}

² _{See A (CA747/10) v R [2011] NZCA 328 and H (CA565/09) v R [2010] NZCA 274.}

³ _{R v Accused (CA291/90) [1991] 3 NZLR 406 (CA).}

⁴ R v Crime Appeal 235/88 CA235/88, 25 November 1988.

four years’ imprisonment. The Court said that sentences in the range of three to five years’ imprisonment would ordinarily be considered unexceptionable for offending of this nature and gravity. This case is more serious because of your daughter’s greater vulnerability, and the greater harm caused by your offending. In addition, that was a 1988 decision, 25 years ago. Sentences for sexual offending were shorter then.

[51] Thirdly, this case is less serious than R v L (CA358/05)⁵ and Liddell v Police,⁶

both involving starting points of eight years.

[52] The Crown submits that by comparison this case warrants a starting point of

between four and four and a half years’ imprisonment.

[53] Mr Gill submits that this case falls into category one of the sentencing categories set out in the English decision of Attorney-General's Reference (No 1 of

1989).⁷ He correctly observes that that decision was cited by the Court of Appeal in

R v L (CA358/05).⁸ However he has overlooked that the Court went on at [25] to cast doubt on the relevance of the English approach. I am not prepared to place much weight on English case law in this area.

Conclusion

[54] Bearing in mind the cases that I have cited, and considering the charges against you as a single indivisible charge, your starting sentence will be four and a half years’ imprisonment. In all the circumstances I might have chosen a higher starting sentence than that. But I see no reason to exceed the range submitted to me by the Crown.

What your final sentence will be

[55] I now address factors relating to you personally, rather than the offending, that might alter the starting sentence either up or down.

⁵ _{R v L (CA358/05) CA358/05, 7 March 2006.}

⁶ _{Liddell v Police HC Gisborne CRI-2004-416-22, 13 October 2004.}

⁷ _{Attorney-General's Reference (No 1 of 1989) (1990) 90 Cr App R 141 (CA).}

⁸ R v L (CA358/05) CA358/05, 7 March 2006.

Previous good character

[56] You have no previous convictions.

[57] You have contributed much to your immediate community and particularly your church. You have been a congregational leader, a lay preacher and a Sunday school teacher. You have cooked, cleaned and gardened for the church. You are described as a knowledgeable, friendly and hardworking employee.

[58] Given your previous good character, I will discount your sentence by ten per cent.

Remorse

[59] I have read the letters of support written by your family, friends, employer and church. The church community is particularly supportive of your rehabilitation. They say that you have learned from your mistakes. I have to say I find the word “mistakes” a remarkable euphemism. They say you have apologised to your daughter’s biological family. You have brought shame upon your family, but your wife and family offer you their forgiveness. You acknowledge you have done wrong, and you acknowledge you are a “sinner”.

[60] It is commendable that you are taking steps to rehabilitate yourself. But there is something very important that is missing. Few of your referees acknowledge the sheer seriousness of your having committed sexual offences against your own family.

[61] Little concern is expressed in those letters for your daughter’s welfare. Yet in all this appalling tragedy, she is the most important person that we have to look out for; that you and your family need to look out for. I fear there is a risk in all this that she has been forgotten.

[62] The pre-sentence report writer reached similar conclusions in relation to remorse. In your interview with him, you identified your wrongdoing as an affair, rather than serious offending against a vulnerable family member. You focused on

the effect of the offending upon your family and yourself. You showed little insight into the harm you had caused your daughter.

[63] Your counsel, Mr Gill, has said in his submissions all that could possibly be said for you. And more besides. Alive to the issue about remorse, he has trawled through your police interviews. He them he found one reference to sorrow, and another to your being a sinner. In the former case it is unclear who you are sorry for. In the latter case you went on to apologise to the church, rather than to your daughter.

[64] I am conscious that there may be cultural and communication issues here, but I cannot on the material before me do justice by discounting your sentence for remorse. It is too little evident to be given credit.

[65] Let me say this to you. It may be that you are truly and deeply remorseful for what you have done. It will be critical to the welfare of your daughter, whom you have harmed so much, that you express that. It will be critical to her too, that your community embraces and supports her. And it will be critical to you, if you want to obtain the earliest release from prison available to you, that in your dealings with the Parole Board you make clear what genuine remorse you have for what you have done.

[66] While I cannot discount your sentence today for remorse, in the end if you are truly remorseful you may see yourself leave prison earlier than otherwise would be the case.

Guilty plea

[67] You entered a guilty plea to the representative incest charge in the District Court at the earliest opportunity in December 2012. Other charges were laid, and the case was transferred to this Court, and by consent your former plea was vacated.

[68] Eventually in June 2014 other charges were dropped and you again entered a plea of guilty to the charges (now three) of incest. I am not prepared to give you the

full 25 per cent discount possible had you again pleaded guilty to the incest charges at the earliest possible stage. But I will give you a discount of 20 per cent.

[69] That results in an end sentence for you of three years and three months’ imprisonment. A sentence of that length means that you are not eligible for home detention.

Sentence

[70] Stand please.

[71] I now sentence you to three years and three months’ imprisonment on each of the three counts. Those sentences will be served concurrently. So you will serve a maximum of three years and three months in prison altogether.

[72] I record that in accordance with ss 201 and 203 of the Criminal Procedure Act 2011, publication of the name, address, occupation or identifying particulars of the complainant and of the defendant is prohibited.

[73] Mr T, you know now where you are going. And you know what you have to do.

[74] Thank you. You may stand down.

Stephen Kós J

Solicitors:

Crown Solicitor, Wellington

Gill & McAsey, Lower Hutt